Premier Automobiles Ltd. vs S.B. GHOSH

THIS order will dispose of both the above titled appeals which arise out of the order dated 6th July, 1992 of the State Consumer Disputes Redressal Commission, West Bengal at Calcutta in S.C. Case No. 827 of 1992 on a complaint filed by Shri S.M. Ghosh.

THE facts as appear from the record are that Shri Ghosh had purchased a Premier Padmini BE Car through Auto Distributors Ltd. (for short the Dealer), who is the authorised dealer of the said car manufactured by Premier Automobiles Ltd. (for short the Manufacturer). THE car had been purchased by Shri Ghosh on 6.6.1990. At the time of purchase the complainant did not notice any defects in the car. On the other hand, he duly signed a customer delivery receipt without pointing out any defect. On the same day later on Shri Ghosh wrote a letter to the Manufacturer pointing out certain defects. THE Manufacturer asked the complainant to take the car to the Dealer for rectification of the defects. In spite of repeated reminders by the Manufacturer and the Dealer Shri Ghosh did not take the car to the Dealer for repairs and on the other hand filed a complaint before the District Forum, Calcutta for replacement of the car. THE District Forum appointed AAEI to inspect the car and report about the defects. In the mean time the case was transferred by the District Forum to the State Commission. While the case was pending before the State Commission, the Opposite Parties were proceeded against ex-parte. Vide order dated 12th April, 1991 the State Commission ordered the Manufacturer to refund Rs. 1,44,254/- with interest @ 18% from 8th March, 1990 till payment. It appears that the Manufacturer and the Dealer filed an application to set aside the ex-parte order. THE President of the State Commission sitting singly passed some order. THEreafter both the parties came in appeal before this Commission. Subsequently all the aforesaid orders of the State Commission were set aside by this Commission as those had been passed by the President sitting alone. THE State Commission was requested to decide the case afresh on merits. After remand, the State Commission passed the impugned order. The relevant portion of which reads as follows: "All the survey reports are unanimous in holding that there were several defects detected on the car-mostly visual defects some of the reports were submitted after the expiry of the warranty period. The explanation of the Dealer is that the car was left in an open garage exposed to natural elements and particularly as it was not used, it had become a piece of junk. The petitioner was asked rimes without miles to take the car to the garage of the Dealer but the petitioner never took it for repair for reasons best known to him. It is rather strange that when the petitioner received delivery he did not notice any defect, only two days after he reported defects in the car to the manufacturer at Bombay who asked the Auto distributor to look into the matter. He was asked to take the car to the garage of the dealer for repair but he did not respond. Be that as it may the car had defects which if timely attended to it would have been usable. Therefore, we order the Manufacturer to repair the car completely make it as good as new to the satisfaction of the Buyer and pay a compensation of Rs. 10,000/- towards the cost within 15 days from the receipt of this order".

Feeling aggrieved by that order, the Manufacturer has filed Appeal No. 275 in which the Complainant has been arrayed as Respondent No. 1 while the Dealer as Respondent No. 2. Appeal No. 294 has been filed by the Complainant in which the Dealer has been arrayed as Respondent No. 1 and the Manufacturer as Respondent No. 2. The grievance of the Manufacturer in the, appeal is that though they have been willing at all relevant times to carry out the minor repair/paint job as recommended by Automobile Association which is an independent agency and which was appointed by the District Forum. It is further alleged that there were no defects in the car and the defects are only of visual nature and could have been seen by the naked eye at the time of purchase of the car and it is not possible for the paint of the car to get discoloured and the car to become disfigured within 48 hours. What seems to have happened is that after taking delivery of the car it must have been involved in an accident resulting in some damage/dents on the body of the car. According to the Manufacturer these defects cannot by any stretch of imagination be attributed to them.

The Complainant in his appeal prays that the Opposite Parties, i.e., the Manufacturer and the Dealer be asked to refund the sum of Rs. 1,44,254/- viz. the price paid by him for the car with interest @ 18% from the date of respective deposits till payment. He also prayed for compensation of Rs. 400/- per day from 6.6.1990.

AFTER hearing the parties and going through the records of the case, we are of the opinion that the Manufacturer''s appeal is liable to be allowed and the appeal filed by the Complainant has only to be dismissed. As noticed above, the Complainant did not point out any defect at the time of taking delivery of the car. He is not new to the purchase of a car. As appears from his letter dated 5th June, 1990 (page 43 of the paper book of appeal No. 275 of 1992) he is possessing cars since pre-independence days procured from different car distributors. (It may be pointed out that the said letter is a complaint about non-delivery of the car). It is strange that he noticed the alleged visual defects only after driving the vehicle for about 44 Kms. Moreover when he noticed the alleged defects, he ought to have taken the carat once to the Dealer who had supplied the car and pointed out the defects to him. Instead of that he chose to write a letter to the Manufacturer on 6.6.90 about the alleged defects. It was further mentioned "I am sending you the confirmation of my complaint supported by authorised surveyor within 4/5 days which may kindly be noted". In such circumstances the Manufacturer is justified to say that the purchaser might have met with an accident and took the time of 4/5 days to get the repairs effected and intentionally did not take the car immediately to the Dealer for rectification of the alleged defects.

IT was also not in dispute that the complainant in spite of repeated reminders did not take the car to the local Dealer for repairs. Even the State Commission has held this behaviour of the complainant as strange. If any defects did really exist the Dealer could have rectified them within the warranty period if the car had been taken to him. The Complainant did not choose to do so. On the other hand, the car is said to have been kept idle exposed to Sun and rain the last more than 2 years and subjected to vagaries of many seasons. We are unable to see any justification for directing the Manufacturer and the Dealer to repair the car completely and make it as good as a new one. The State Commission was also not justified in ordering the payment of compensation as the Manufacturer or the Dealer never refused to rectify any defects. They were prepared to do so even before the receipt of the report from AAEI. For the foregoing reasons, we accept the appeal No. 275 of 1992 filed by the Manufacturer and set aside the impugned order and dismiss the complaint filed by the complainant. It follows that appeal No. 294 filed by the Complainant automatically fails. The Appellant in Appeal No. 275 will be entitled to costs of the present proceedings from the Complainant which we assess at Rs. 3,000/-. An amount of Rs. 2,000/- is also awarded to the Dealer, who is Respondent in Appeal No. 294 of 1992 to be recoverable from the Complainant. Ordered accordingly.